Sustainable, Just, and Democratic

Shalanda H. Baker

The battle over the future of net energy metering in the United States is alive and well. Utilities decry the benefits of compensating homeowners for rooftop solar generation, often relying on the argument that net energy metering programs harm low-income populations that lack opportunities to participate in the solar revolution. Thus, the argument goes, the status quo should remain to protect the most vulnerable. Solar advocates, on the other hand, push for a broader analysis of the true benefits of rooftop solar generation to overall grid stability and to reduce carbon emissions. They argue for expanding rooftop solar markets where such markets are available, and urge the modern utility structure to change to foster deeper resiliency. This chapter posits that energy justice lies at the heart of this debate, but it is missing from the discourse. Neither side of the debate advances a comprehensive solution that resolves the vulnerability question while also expanding opportunities for access. The chapter argues that curtailing extensive net energy metering programs without creating authentic opportunities for participation in renewable energy generation by low-income communities deepens inequality and vulnerability. Although the existing community energy programs, as currently contemplated, hold some promise, positioning such initiatives within the current electric utility generation paradigm might actually decrease resiliency in low-income communities. The energy justice frame illuminates several pathways to resolve these potentially contradictory outcomes. This chapter suggests that community energy initiatives, while imperfect, offer an opportunity to locate renewable energy resources within a commons, thereby advancing energy justice and upending the current analytical frame that holds together the net energy metering debate. Community energy programs can address vulnerability by expanding market access to renewable energy generation for low-income communities, obviating the need to maintain the current generation monopoly held by modern utilities. Moreover, if crafted correctly, community energy programs could also address inequality by providing communities an opportunity to generate, own and distribute renewable energy. Finally, transformative community-based energy planning development offers an opportunity to increase resiliency, transform existing economic relationships, reconceptualise the nature of energy, and promote equality.

Edited by Melissa K. Scanlan

Sustainable, Just, and Democratic

Janelle Orsi

This chapter describes three principles for organizations to embed in their legal, financial, and governance structures in order to build commons and move beyond the extractive structures of conventional business. “The commons” is emerging as a unifying framework for the creation of sustainable and equitable economies, and organizations everywhere will increasingly ask their lawyers for guidance on how to set up a “commons-based” entity structure. Land trusts, energy cooperatives, water mutuals, worker cooperatives, food cooperatives and housing cooperatives will all require that lawyers approach legal structural design with a mindset that decisively rejects business-as-usual. These principles emerge from practice and are designed to be immediately applicable in any organization.

Edited by Melissa K. Scanlan

Sustainable, Just, and Democratic

David Bollier

There is a long history, stretching back to the Magna Carta in 1215, of commoners seeking to use law to decriminalize their sharing and secure legal recognition for their self-organized management of shared wealth – “commoning”. However, because state law is philosophically committed to a social order based on individual property rights, private capital accumulation and extractive relationships with nature, it often does not have the motivation, vocabulary, or legal instruments to adequately protect collective, long-term and ecological interests. This chapter describes a variety of creative initiatives attempting to reinvent law for the commons in disparate settings – indigenous, subsistence, digital, urban, local and organizational, among others – which are part of an emerging effort to legitimate the commons as a generative social form.

Edited by Melissa K. Scanlan

Sustainable, Just, and Democratic

Catherine Iorns Magallanes and Linda Sheehan

If we want to encourage the emergence of the new economy that is envisaged in his book, then the legal framework that supports it will need to change. This chapter outlines the essentials of a legal framework that arises from a paradigm that recognizes the importance of nature and re-prioritizes humans’ place within it. It focuses on three essential elements: the recognition of the intrinsic value of nature, the recognition of inherent rights of nature, and the establishment of a framework of human responsibility for nature. Such a legal framework would entail a paradigm shift; however, adoption of such elements in law can also help achieve such a shift in mindset as well as in practice. To this end, this chapter includes examples of existing and proposed laws adopting these three essential and intertwined elements, with global focus areas that include California and Aotearoa New Zealand.

Edited by Melissa K. Scanlan

Sustainable, Just, and Democratic

Jennifer Taub

New economy advocates, including Gus Speth, look to transform the corporation from an enterprise designed primarily to provide profits for shareholders to one concerned about a broader set of values and stakeholders. Such a shift ideally would help us prioritize people, place and planet. Perhaps those who bring leadership to businesses that focus on social and environmental concerns – social entrepreneurs – can answer the call by reorienting the corporations they create. Such efforts to transform individual firms could inspire widespread change. The timing is good for such a transition, as social entrepreneurs have promising new options available for broadly soliciting like-minded investors and organizing their business enterprises to include social goals. Yet, due to distrust of the existing system, some may not explore these opportunities. Not attuned to mainstream matters, they may be unaware of the recent legal changes that make it easier for them to engage within the existing financial and corporate governance systems to fund their enterprises and to organize them with a social or environmental mission in mind. These recent legal developments are significant. Now in the US, those seeking to fund an enterprise can forgo a complex, time-consuming full federal registration process with the Securities and Exchange Commission (SEC) while still reaching out to solicit a wide group of potential investors. This general solicitation can take place in a variety of media including advertising online through crowdfunding portals. The ability to bypass the full SEC registration process is the result of recent legal reforms that streamline how businesses can raise money through the offering and sale of securities. These legal reforms impact social entrepreneurs because the law covers the methods they might use to attract funding. Unlike donations made via crowdfunding, which are not subject to the securities laws, investments with an expectation of profit could be. This chapter provides background on securities laws in the US to contextualize the legal changes and proposals. Then it details how three recent legal developments at the federal and state levels can aid the startup or expansion of social, community and environmental business enterprises. These are (i) advertising unregistered securities offerings to the public with sales just to accredited investors; (ii) investment crowdfunding of unregistered securities to an unlimited number of non-accredited investors; and (iii) state law changes permitting benefit corporations as well as one state’s law to smooth the path for investing in local solar energy businesses.

Edited by Melissa K. Scanlan

Sustainable, Just, and Democratic

Mary Christina Wood

The current environmental regulatory system promotes a destructive and unsustainable economy. While environmental statutes supposedly aim to control harm inflicted by the industrial economy, in fact they perpetuate destructive economic activity by regularly authorizing permits to pollute and destroy. Corporations and profiteers controlling the bureaucratic apparatus use the law to drain the natural wealth of communities for their own profit. On those rare occasions when environmental regulation successfully halts destruction, the resulting narrative presents an impossible “jobs v. environment” conflict that undermines environmental law in the broader political milieu. This chapter sets forth a legal paradigm called Nature’s Trust that draws upon the public trust principle to support both economic prosperity and ecological integrity. The public trust is an ancient doctrine, manifest in every state in the United States and in many countries throughout the world, including India, Kenya and the Philippines, to name a few. It requires government to act as a trustee with respect to the natural world and its elements. A fundamental component of democracy, the trust empowers citizens to hold government accountable for ecological protection. It also forms an inherent constraint on a private property regime that empowers colossal destruction. Finally, the Nature’s Trust paradigm reformulates the role of the corporation in modern society, recognizing imbued fiduciary limitations arising from state charters.

Sustainable, Just, and Democratic

Laurie Ristino

This chapter argues that as taught and practiced law has been made socially irrelevant, undermining its potential to generate and sustain paradigm-shifting change. Although the legal academy has adopted a more practice-ready pedagogy, the fact remains that legal education and its substance is stubbornly unchanged, divorced from other disciplines and communicated in a traditional parlance intended only for other legal professionals. The result is that most people do not understand the value of the law in their daily lives because the barrier to legal information is too high. The rise of legal design and transdisciplinary collaboration, however, provides a radical reimaging of the law as centrally relevant. Legal design requires that legal solutions are designed with the end user in mind. Moreover, legal design integrates the law into social products. This is “Legal Democracy” because the law and the empowerment it represents is made broadly available. The food movement provides a real-time example of legal democracy in action, including the work of Janelle Orsi and her Sustainable Economies Law Center, the food projects of Stanford’s D School, and the legal products created by the Food and Agriculture Clinic of the Vermont Law School. This chapter explores legal democracy and its roots in legal design, communications and technology and then provides examples of legal democracy at work through the legal solutions generated by the Food and Agriculture Clinic. Finally, it explains how this approach to the law has the capacity to scale healthy food systems and support vibrant local and regional economies through cataloging and disseminating innovative legal and policy solutions.